[Defendant]
[Appellant] Defendant
[Lower Court Judgment]
Busan District Court Decision 86No820, rendered February 17, 1987
[Order]
The appeal is dismissed.
[Reasoning]
The grounds of appeal are examined.
The proviso of Article 30 of the Labor Standards Act (근로기준법) provides that, where a worker has retired, the deadline for payment of retirement allowances and other payments may be extended by agreement between the parties. However, the mere fact that the employer was unable to make such payment due to financial pressure arising from, among other things, a downturn in business cannot be regarded as the special circumstance referred to in the above provision.
Therefore, if the Defendant, citing such reasons, failed to pay the retirement allowance and other payments to the worker in a timely manner without any agreement to extend the deadline with the worker, this constitutes the crime at issue in this case. The judgment of the court below, which reached the same conclusion, is justified.
Since Article 14 of the Labor Standards Act provides that a "worker" means a person who, regardless of the type of occupation, provides labor to a business or workplace for the purpose of earning wages, even if the form of a subcontract (도급계약) agreement is used, if the content of the contract is such that a relationship of employment and subordination is maintained with the employer, the sole purpose being the provision of specified labor to the contractor's business or workplace, and payment for such labor provision is made in the form of efficiency bonuses or performance-based pay, then the person who provided labor under such an arrangement falls within the meaning of "worker" as defined in the above Act.
Accordingly, the court below's finding of fact that Kim Tae-su provided labor within the Defendant's workplace under the Defendant's direction and supervision, and received pay on a subcontract basis, and its determination that Kim Tae-su is a "worker" under the Labor Standards Act, are also justified.
In conclusion, there is no error in the judgment of the court below, such as a misapprehension of the law or a violation of the rules of evidence, as alleged.
As in the present case, where a fine has been imposed, an assertion of unfairness in sentencing cannot serve as a lawful ground of appeal under the Criminal Procedure Act (형사소송법). All of the arguments are without merit.
Accordingly, the opinions of the participating Justices being unanimous in dismissing the appeal, it is so ordered as stated in the Order.
Justice Jeong Gi-seung (Presiding Justice), Lee Myeong-hui, Yun Gwan